The food industry has launched a campaign against the proposed guidelines by claiming that limiting their ability to advertise to children would infringe their First Amendment rights. Today, Public Health Law & Policy, an advocacy group in Oakland, Calif., submitted letters (.pdf) from 36 legal experts to federal agencies and the White House to dispute the industry’s claims. Among other things, their letter says:

The Free Speech Clause applies only to government mandates restricting or compelling private speech. The draft nutrition principles, which are designed “to guide industry self-regulatory efforts,” do not restrain or compel anyone’s speech. They are not, in fact, government regulation at all. Instead, they are the speech of the government itself.

The author of Food Politics, Marion Nestle, PhD, who is a professor of Nutrition, Food Studies and Public Health at New York University, has written frequently on the issue of marketing junk food to children. Here’s a bit of her take on the latest developments:

My initial reaction: the standards were much too generous. But that’s not how the food industry sees them. Food companies realized that the standards exclude large proportions of the junk foods they currently market to kids.

They created a new lobbying group, “Sensible Food Policy Coalition” (shades of George Orwell’s 1984). This group is doing everything it can to block the proposed standards. Its website links to white papers opposing the recommendations on First Amendment grounds.

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of these claims in a recent blog post, in which he emphasizes the voluntary nature of the proposals.

I’ve said it before and repeat: I am not a legal scholar but intention seems to matter in legal decisions. The intent of the First Amendment was to protect political and religious speech. I cannot believe that the intent of the First Amendment was to protect the right of food companies to market junk foods to kids.

Marketing to children is unethical. It should be stopped. And it’s the government’s responsibility to do it.